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Death Penalty Challenges

The 1960s brought challenges to the presumed legality of capital punishment in the United States. Before then, the Constitution was understood as permitting the death penalty. In the early 1960s, that changed.

During the 1960s, challenges to the constitutionality of capital punishment led to popular interpretations of the death penalty as cruel and unusual punishment. Under the Eighth Amendment to the U.S. Constitution, such punishment is unconstitutional.

Although it's legal in more than half of U.S. states, death penalty challenges are common, and the issue remains divisive. For example, in Texas, Florida, Oklahoma, Alabama, Louisiana, Arizona, Utah, and South Carolina, the death penalty remains an acceptable form of punishment.

The following is an overview of death penalty challenges in the United States, including summaries of key court decisions at the U.S. Supreme Court.

The 'Standard of Decency'

In 1958, the Supreme Court decided in Trop v. Dulles, that the Eighth Amendment contained an "evolving standard of decency that marked the progress of a maturing society." Although Trop wasn't a death penalty case, abolitionists applied the Court's logic to executions and maintained that the United States did indeed progress to a point that its "standard of decency" should no longer tolerate the death penalty.

Death Penalty Challenges: Administration of Executions

In the late 1960s, the Supreme Court began to reconsider the way the death penalty was administered.

In 1968, for example, the Supreme Court heard two cases which dealt with prosecutorial and jury discretion in capital cases. In U.S. v. Jackson, the Supreme Court heard arguments regarding a provision of the federal kidnapping statute requiring that the death penalty be imposed only upon recommendation of a jury.

The Court held that this practice was unconstitutional because it encouraged capital defendants to waive their right to a jury trial to ensure they wouldn't receive a death sentence.

The Role of Jurors in Capital Cases

In Witherspoon v. Illinois, the Supreme Court maintained that a potential juror's reservations about the death penalty were insufficient grounds to prevent that person from serving on the jury in a death penalty case. Jurors could be disqualified only if prosecutors could show that their attitudes toward capital punishment would prevent them from making an impartial decision about the punishment.

In 1971, the Supreme Court twice addressed the problems associated with the role of jurors and their discretion in capital cases, in Crampton v. Ohio and McGautha v. California (consolidated cases).

The defendants argued it was a violation of their Fourteenth Amendment right to due process for jurors to have unrestricted discretion in deciding whether the defendants should live or die, and such discretion resulted in arbitrary and capricious sentencing. Crampton also argued that it was unconstitutional to have his guilt and sentence determined in one set of deliberations, as the jurors in his case were instructed that a first-degree murder conviction would result in a death sentence.

The Court rejected these claims, thereby approving of unfettered jury discretion and a single proceeding to determine guilt and sentence. The Court stated that guiding capital sentencing discretion was "beyond present human ability."

Methods of Execution

Originally, methods of execution involved either hanging or firing squad. As time has passed, those methods of execution have mostly been replaced by lethal injection, death by inhalation of noxious gases, and the electric chair.

The last execution by firing squad took place in 2010, when a Ronnie Lee Gardner requested this method of execution, claiming that it would lead to “no mistakes." Gardner had been sentenced to death for killing a person in an attempted escape from a courthouse in 1985. The last execution by electric chair took place in the state of New York on July 1, 1997. On that day, a Harold McQueen, Jr. was put to death in this way for murder.

Death Penalty Challenges: Lethal Injection Drugs

Although lethal injection has commonly been associated with a more-humane approach to executions, many have challenged this assertion. This method typically employs three kinds of drugs in a specific order: a barbiturate that renders the prisoner unconscious, followed by a paralyzing agent, and finished with a drug that stops the heart. Some manufacturers, such as Hospira, have stopped making these chemicals, as pressure from activists has grown too high and negative attention from the public and across the globe has become too intense.

But there also have been court challenges to these substances, midazolam in particular. The drug is usually the first one administered and is supposed to block the pain caused by the second and third drugs -- but attorneys for Tennessee death row inmate Billy Ray Irick argued to the Supreme Court in 2018 that the state's three-drug cocktail "will cause him to experience sensations of drowning, suffocating, and being burned alive."

The Court denied his request for a stay of execution, which was brought by 32 prisoners on Tennessee's death row, but this issue may come up again in the future.

Decided in 2008, Baze v. Rees served as another challenge to the constitutionality of lethal injection chemicals. In the case, the U.S. Supreme court also reviewed the constitutionality of a specific variety of lethal injection.

Ralph Baze and Thomas Bowling were sentenced to death in Kentucky, after they were convicted of a double murder. Before the Supreme Court, the two argued that the method of execution, by which they were to die in Kentucky, could not guarantee unnecessary suffering. As it could not guarantee that, they argued that this variety of lethal injection violated Eighth Amendment prohibitions on cruel and unusual punishment.

At the time, Kentucky used sodium thiopental, pancuronium bromide, and potassium chloride in its lethal injections. Ultimately, no single opinion from any of the Justices carried a majority. However, the Supreme Court upheld their sentences, in part on recognition that nearly every other state where lethal injection was practiced used the same cocktail of chemicals in executions, as well.

Major Death Penalty Cases and Jurisprudence

Decided in 1972, Furman v. Georgia brought about major changes in attitudes and laws concerning the death penalty.

In the Furman case, 26-year-old William Henry Furman was sentenced to death for killing a person during an attempted burglary. By majority, the U.S. Supreme Court invalidated all death penalty schemes across the country, although they could not agree upon the rationale. A few justices pointed to the following as the rationale:

  • The arbitrariness of the penalty, and
  • The greater vulnerability to the penalty amongst Black defendants

Other justices referred to how the penalty in and of itself was cruel and unusual, given that it could not co-occur with evolving standards of decency.

As a result of the Furman decision, a moratorium on the death penalty remained in effect until 1976, when the U.S. Supreme Court heard Gregg v. Georgia.

In the mid-1970s, a Troy Gregg was convicted of murder and sentenced to death. After a trial court and appellate court upheld his sentence, the U.S. Supreme Court granted his certiorari.

Against Gregg's claims that his death sentence violated the Eighth Amendment and the Fourteenth Amendment, the U.S. Supreme Court decided against him. He became the first person whose death sentence the Supreme Court ever upheld.

The Court reasoned that the death penalty was not unconstitutional, and not in and of itself cruel and unusual punishment, when it is carried out under sentencing guidelines so as to prevent “capriciousness" and “prejudice" in the administration of the penalty. However, this Supreme Court decision, in particular, placed a greater emphasis upon the need for juries to consider mitigating factors in death penalty cases.

Against the dissent of Justices William J. Brennan and Thurgood Marshall, who maintained as they did during the Furman case that the punishment was indeed cruel and unusual, the moratorium on capital punishment ended with the Gregg case.

In 1987, the U.S. Supreme Court again upheld a prisoner's sentence to death in the case of McCleskey v. Kemp. Sentenced to death in 1978 for killing a white police officer while robbing a store in Georgia, Warren McCleskey died by electric chair in September of 1991.

Although the Supreme Court recognized racial bias in death penalty schemes, in its upholding of the McCleskey's punishment it claimed that such a bias did not in and of itself render the death penalty cruel and unusual and incompatible with the Eighth Amendment prohibition on cruel and unusual punishment.

Capital Punishment and People with Intellectual Disabilities

In the case of Atkins v. Virginia, the U.S. Supreme Court reviewed whether persons with intellectual disabilities may be executed. Having an IQ of 59, attorneys for Darryl Atkins, convicted of murder in the killing of a person using an ATM in 1996.

In the Atkins case, decided in 2002, the Supreme Court ruled that putting people with intellectual disabilities to death violates the Eighth Amendment, given that people with such disabilities cannot adequately appreciate the consequences of their actions.

At the same time, however, the Supreme Court recognized that states can independently determine who has an intellectual disability and what constitutes such a disability. As a result of the court's ruling in the Atkins case, state law remains the dictating factor in determinations of the grounds upon which someone cannot be put to death.

The Death Sentence and Minors

Decided in 2005, Roper v. Simmons saw the U.S. Supreme Court reviewing whether use of capital punishment in cases where the defendant is a minor is constitutional. The Court ruled that it was not constitutional.

In 1993, two teenagers were convicted of murdering a 46-year-old woman in Missouri, after they abducted her and threw her off a bridge. It was reasoned that, although the teenagers had indeed committed the crime, their level of mental and emotional development as minors was not sufficient to make them qualify for the death penalty. Given the stages in their development, they could not adequately engage in the same kinds of premeditation that adults can, which serves as a reason to disqualify someone from capital punishment.

Get Professional Legal Help with Your Criminal Case

As the U.S. remains one of the few industrialized nations to continue using the death penalty, challenges to the constitutionality of capital punishment at state court and federal court levels remain common. Despite these challenges, death penalty statutes remain in effect today, permitting executions of prisoners convicted of a variety of capital offenses.

In many jurisdictions, both on the federal level and the state level, capital punishment remains an option for sentencing a convicted criminal. But because the death penalty is only rarely used, it's not often an issue that a person encounters in the criminal justice system.

If you're facing criminal charges of any kind, including those related to capital offenses, it's important to speak with a qualified defense attorney. They can help you get the best outcome possible in any criminal proceeding.

Death penalty law is one of the darkest parts of the American legal system, and handling an issue related to the death penalty can be so difficult that the assistance of an attorney is really the only route. If you're facing such a penalty or a criminal penalty of any other kind, it's advisable to consult with a lawyer.

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